Ninth Circuit Puts Egbert On Full Display In Declining to Extend Bivens
This case law update was written by Michael J. Sgarlat, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
Samuel King, Jr. | U.S. Air Force
On June 10, 2018, Denise Mejia and her husband spent the day driving their utility terrain vehicle (UTV) in Berdoo Canyon, public lands near Joshua Tree National Park that are managed by the Bureau of Land Management (BLM). The Mejias failed to yield to a park ranger attempting to issue to them a traffic violation.
The National Park Service requested that Wesley Miller, a now-retired BLM law enforcement officer assist them. Miller and the ranger searched the public lands, and spotted the Mejias. They positioned their vehicles as a blockade, and as the Mejias approached in their UTV, yelled “police, put your hands up.” The UTV passed Miller, and he fired multiple shots at them. Denise Mejia was shot in the right hand, and a bullet grazed her head.
She brought several claims against the United States under the Federal Tort Claims Act (FTCA). She also brought claims against Miller under the implied cause of action adopted by the Court in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, (1971), asserting unreasonable seizure and excessive force in violation of the Fourth Amendment. Miller sought summary judgment based on qualified immunity. The district court granted his motion on the unreasonable seizure claim, but denied it as to the excessive force claim. Miller filed interlocutory appeal with the U.S. Court of Appeals for the Ninth Circuit.
Though Miller did not raise the issue of whether Bivens applied, the Ninth Circuit stated that it had jurisdiction to make this determination on interlocutory appeal because “the existence of the cause of action is an antecedent legal question defining the claim” and “is directly implicated by the defense of qualified immunity.” The court of appeals concluded that there is no Bivens cause of action here.
The court of appeals analyzed the case in light of the Supreme Court’s recent decision in Egbert v. Boule, 142 S.Ct. 1793 (2022). In the decades following Bivens, the Court had only recognized an implied cause of action for two other contexts, and has since used a two-step framework to determine whether to extend Bivens.
As described by the court of appeals, under that framework, courts must first evaluate whether the claim arises in a “new context,” one that is “different in a meaningful way from previous Bivens cases decided by th[e] Court.” Next, if the context is new, the courts must assess whether there are “special factors counselling hesitation.” The court of appeals noted that prior to Egbert, the inquiry in the second prong was “whether the Judiciary is well suited, absent congressional action or instruction to consider and weigh costs and benefits of allowing a damages action to proceed.”
The court of appeals stated that “Egbert reiterates the longstanding first step of the Bivens question, but clarified that the second step is now whether: ‘special factors indicate that the Judiciary is at least arguably less equipped than Congress to weigh the costs and benefits of allowing a damages action to proceed.’” Thus, the court of appeals explained “[t]he question is no longer whether the Judiciary is well suited, but whether Congress is better suited.” Per the court of appeals, “[u]nder Egbert, rarely if ever is the Judiciary equally suited as Congress to extend Bivens even modestly.”
Here, the court of appeals found that Mejia’s claim presented a new context for several reasons, including that: Bivens has not been extended to BLM officers; BLM officers have an entirely different legal mandate from the narcotics officers in Bivens; and the alleged excessive force claim did not occur in the privacy of an individual’s apartment like it did in Bivens, but on public lands where Mejia had no expectation of privacy.
Moreover, the court of appeals found that Congress is better suited to create a cause of action for a federal officer’s the use of excessive force here. The court of appeals described that like in Egbert, where one of the special factors was the availability of alternative remedies, there were alternative remedies available to Mejia here. Specifically, the court stated that Mejia could have pursued administrative remedies, and included a link to BLM’s website, where she could have reported misconduct against Miller. Likewise, the court noted that “while her FTCA claims are based on a different legal theory, in Mejia’s instance they are an alternative avenue to seek damages for the injuries alleged in her Bivens claim.”
Accordingly, the Ninth Circuit vacated the district court’s denial of summary judgment and remanded so the district court may enter summary judgment dismissing the Bivens excessive force claim.
Read the full case: Mejia v. Miller
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